4 Rise of the Nanny State

Mulberry Street, New York City (Little Italy), 1900, Library of Congress

You could think of this chapter’s topic, the Progressive Movement, as when Americans first argued seriously about drawing the lines between freedom and order in the modern, industrialized word. Today, it’s the main thing we argue about in politics when nothing dramatic is going on. What is the appropriate balance? What should the role of government be?

The easy answer — the one most likely to blurt out of our mouths after considering the question for five seconds instead of five minutes — is that we should have fewer laws and more freedom. That’s not necessarily a bad response, but it’s probably an issue best dealt with on an item-by-item basis, with an understanding that most rules result from somebody abusing the earlier lack of rule, at which point someone else (other citizens, not an imaginary tyrant) pressed the government to make the rule. Among other things, rules protect the environment, personal safety, privacy, and national security; and they prevent monopolies, fraud, discrimination, and terrorist attacks (or try to).

For people focused on freedom that haven’t experienced true societal chaos, it’s easy to forget that there are no “rights” in the first place without governments, only nature “red in tooth and claw.” Rights are a function of government. Medieval Europe, with small and weak states, had a homicide rate that historians estimate to be 20-30x higher than the modern U.S. or Europe. Governments are easy and unimaginative targets when really disagreements about laws originate amongst us. In most cases, evil men-in-black from an elitist, distant bureaucracy don’t swoop into town in an unmarked SUV with tinted windows and inflict the rule on a public uniformly opposed to it. Should drunks be able to drive through neighborhoods going 130 mph? Should prostitutes and drug dealers have the right to conduct business in front of your house, or kid’s school, or anywhere? If your answer is no to any of these questions, then you’re at least somewhat sympathetic to the notion of a regulatory state, even if you think of yourself as opposing big government and the phrase regulatory state nauseates you. We don’t live on the Serengeti anymore. You may not be in the same spot on the freedom-order spectrum as your more cautious or reckless neighbor, but neither are you fundamentally opposed. Nor is there really a single spectrum to start with; most people are libertarian in some ways and not in others.

Lunch Atop a Skyscraper, Charles Ebbets, 1932

What about these workers taking a lunch break atop the RCA Building at Rockefeller Center? Is it uptight to suggest they should wear harnesses or just smart? Who is liable if a gust of wind comes along and blows them off the girder? The construction company? What about the people they might fall on below? Who would clean up the mess below if they fell? The sidewalk level businesses? The “authorities?” Does the government want them roped up against their will or do the workers want ropes their employers won’t pay for, so they appeal to the government via union voting to force the employers to provide them? In this case, there was nothing to worry about because, according to some at least, it was a staged photo and they weren’t more than twelve feet above the floor below them. But the hypothetical question still stands: are those among us opposed to regulations really willing to not sue if the falling worker lands on our relative, or will we look for someone to blame and demand accountability?

America is a litigious society in a way that cuts across political lines and the threat of lawsuits is part of what thickens those maddeningly thick rulebooks. If you have a high GPA, go into law; it will never go out of style. All of us want the benefits that accrue from protection, law, and order, and none of us want what the British call a “nanny state” crimping our style. Government — the unpopular adult in the room — is just the convergence point for the tension between accountability and regulation. As Constitutional author James Madison put it in the Federalist #63, “Liberty may be endangered by the abuses of liberty, as well as by the abuses of power.” Can we determine through voting, constructive debate, social media, and town hall meetings how we should conduct ourselves in a way everyone agrees on? Of course not. Are you insane? All we can do is compromise in ways that leave everyone a little unhappy. But if we take the time to consider how all this came about, people might aspire to a bit more civility toward each other as we stew in our collective unhappiness. You need look no further for that story than the Progressive Era, when the contours of our modern squabbles over freedom and order took shape.

Progressive SpiritFirst, we should define what Progressivism means more precisely, but only a little more, because this term is hard to nail down. American history is littered with words that have different meanings depending on whether they’re written with a capital or lower-case letter (e.g. Enlightenment, Democratic, Republican, Reconstruction, Populism), and the same goes for progressive. In any era, progressives advocate for changes that they think would improve society, critiquing the status quo in more fundamental ways than those who put more stock in tradition or habit. But Progressive Era with a capital P refers to the era between roughly 1890 and 1920, give or take a few years. Though people sometimes used the word at the time, most famously Teddy Roosevelt’s Progressive Party in the 1912 election, it’s really more of an umbrella term used retroactively (after the fact) by historians to refer to movements that were all trying to improve American society. Reform meant many things to many people. While no one advocated “big government” (no one ever does), many people hoped for a better government and smarter policies that more fully served the needs of the people and, yes, that sometimes meant bigger.

IWW Poster Based on Flyer of the “Union of Russian Socialists” Spread in 1900 and 1901, International Publishing Co., Cleveland, Ohio, 1911

Progressives included some leftists or Populists (previous chapter) that questioned capitalism fundamentally, but also business leaders and conservatives trying to improve society, make things more efficient, or diffuse leftist radicals by compromising. One Democratic president, Woodrow Wilson, described Americans of that time as “in a temper to reconstruct economic society.” Progressives tried to clean up the corrupt political machines we read about in Chapter 2 and, as we’ll see in the next chapter, Progressives reformed and improved local government at the municipal and state levels. We’ll also read more in the next chapter about how Republicans took the lead in spearheading sensible economic regulations. With a century’s worth of hindsight, we can see that Progressives shared an assumption that organizations, whether they be governments, companies, or advocacy groups, could change things for the better – safer, cleaner, healthier, more equitable, civilized, and efficient. Libertarians they weren’t.

Un-Progressive Progressives: Eugenics
Historians looking to characterize a “typical Progressive” of the era will find no such animal. Progressivism’s disparate movements didn’t necessarily hold common values or see themselves as fighting for a common cause, and many wouldn’t be seen as progressive today. For instance, the Ku Klux Klan endorsed alcohol prohibition which was a Progressive reform movement, but they’re hardly a group that anyone then or now would consider forward thinking.

Moreover, the era included one notoriously reactionary attempt to improve society: eugenics, the science of studying genetic differences on behalf of ethnic cleansing through selective breeding and sterilization. In the classic nature vs. nurture question as to why some people are more talented, successful, or better behaved than others, you could think of eugenicists on the far nature side of the question. That is, environment and circumstance have nothing to do with one’s fate, only your inherited gene pool. Based on a crude misunderstanding and outright misreading of Charles Darwin’s theory of natural selection, they thought society should take things a step further by ridding itself of inferior genetic stock — what Darwin presumably would’ve called “unnatural selection” had he still been alive. Such biological racism predates the publication of Darwin’s Origin of Species (1859), tracing from the Classical era through the Enlightenment to French Aryan theorist Arthur de Gobineau, and Darwin was a harsh critic of early eugenics. English statistician/anthropologist Sir Francis Galton coined the phrase eugenics (Greek root: good, or well) in 1883, fifty years before German Nazis applied similar notions on the extreme scale of ethnic cleansing. Early eugenicists didn’t believe in killing anybody for the most part, but rather limiting the reproductive rights of those they deemed inferior. Galton wasn’t a murderer, but he defined a good society as one where “the weak would find a welcome and a refuge in celibate monasteries or sisterhoods.”

Eugenics was mainstream enough in early 20th-century America that many county fairs had “fittest human stock” contests instead of the usual beauty pageants, with doctors included on the judging panel. The fittest families got blue ribbons, just like the livestock they were showing, and had to submit detailed records of family traits and pedigree. In the Progressive Era, leading American universities researched this kinder and gentler brand of eugenics, funded by the Carnegie Institution and Rockefeller Foundation. Yet, Carnegie money backed a 1911 report by the American Breeders Association that at least entertained the notion of euthanasia as one of the several options to deal with undesirable people. They advocated the “humane” method of death by gas chamber (hydrogen cyanide chambers were invented in Nevada in 1924), but there’s no solid evidence that they carried through on the idea. At the very most, American euthanasia was very isolated and never widespread. Exact comparisons with Nazi Germany therefore constitute a false equivalent (see Rear Defogger #4). Most American eugenicists didn’t support euthanasia or eugenicide (extermination); they just thought that people who had problems or were different than them shouldn’t be allowed to have children. John D. Rockefeller and Andrew Carnegie were joined in this chorus by phone inventor Alexander Graham Bell (Chapter 1) and John Harvey Kellogg, a holistic physician who ran a sanitarium in Battle Creek, Michigan and co-invented Corn Flakes® along with his brother, Will. Of course, in the long run, selective breeding would have the same exterminating impact on a targeted population as mass murder.

The Supreme Court backed Virginia sterilization laws in Buck v. Bell (1927), with Chief Justice Oliver Wendell Holmes arguing that sterilization was more humane than executions or the future starvation of those too imbecilic to care for themselves. Eugenic policy took many forms, including outlawing interracial marriage in half the states, but also included over 60k coerced sterilizations of “unfit” men and women by the 1930s. Most states have since issued formal apologies to victims’ family members.

Logo From Second International Eugenics Conference, 1921, Celebrating Its Interdisciplinary Foundations

Who was “unfit?” In California that included groupings as subjective as “bad girls,” but eugenicists’ ultimate goal was to rid the U.S. of criminals, the infirm, Blacks, Asians, Jews, Eastern Europeans and even poor “hill country” white folks. The Carnegie Institute established a facility at Cold Springs Harbor, New York with millions of index cards where they hoped to catalog the entire American population in preparation for the removal of whole peoples and bloodlines, or “family trunks.” Their leading intellectual beacon was Stanford University President David Starr Jordan, author of Blood of the Nation: Study in the Decay of Nations by Survival of the Unfit (1902). The military conducted a study in 1925 that determined Blacks could never serve ably in combat due to inferiority and cowardice. One influential figure was Army doctor Paul Popenoe, author of Applied Eugenics (1918), who started Ladies’ Home Journal and was a founding practitioner of marriage counseling.

Birth Control & Family Planning
Like marriage counseling, birth control’s history overlaps with the eugenics movement, though in both instances they eventually shed any association with it. Genetics itself has some overlap with eugenics, though that scientific field originated on its own. In none of these cases should one’s opinion of the subject have any more do with their roots than wearing cotton does with slavery or driving a Volkswagen has to do with Nazi Germany.

Margaret Sanger, 1922, Library of Congress

The leading historical figure associated with birth control, Margaret (Higgins) Sanger, is a case in point. As an obstetrical nurse, she took on the 1873 Comstock Law that interpreted birth control and information about birth control as lewd and indecent. Sanger, whose mother had 18 pregnancies in 22 years, founded the American Birth Control League in 1921 — predecessor to Planned Parenthood — promoted sex education and crusaded to both avoid abortions and make abortions safer than the illegal “back alley” operations involving turpentine and knitting needles. Sanger’s reputation suffers partly from her association with eugenics. John D. Rockefeller was an anonymous donor on Sanger’s behalf and she indeed encouraged the poor to have fewer kids. Sanger even gave a lecture on birth control to the Women’s Auxiliary of the KKK, which she enjoyed but said she had to use childlike terminology to make them understand.

Sanger’s motives were more complex than racist eugenicists. One of her most infamous letters, to eugenicist Clarence Gamble of Procter & Gamble, is a good example of how misleading it can be to take quotations out of context. Sanger’s critics on the left and right have seized upon the passage that includes “We do not want word to go out that we want to exterminate the Negro population,” indicating that Sanger was conspiring to exterminate African Americans. However, the full passage reads: “We do not want word to go out that we want to exterminate the Negro population and the [black] minister is the man who can straighten out that idea if it ever occurs to any of their more rebellious members.” The full quote sheds an entirely different light on the passage, indicating that Sanger is worried that people will misunderstand her cause as promoting the extermination of African Americans, which is why she wants black spokesmen to clarify that’s not the case. The reason she didn’t want the extermination idea to get out, in other words, was because it was false. She was advocating birth control and family planning among impoverished people, not extermination or even long-term extermination through selective breeding. One wonders about the various agendas (other than sloppy research) motivating historians to omit the rest of the sentence.

By the mid-1930s, Sanger convinced the mainstream medical community, including the AMA, to accept birth control as a legitimate part of family planning that patients didn’t have to withhold from their doctors. However, it came under attack from some circles again starting in the 1970s, especially because of Planned Parenthood’s association with counseling abortion as the last line of defense against unwanted pregnancies. While Sanger’s eugenic beliefs partially motivated her promotion of birth control, her legacy shouldn’t be reduced to that venture into coalition building. To wit: some pundits have implied that, if Sanger endorsed eugenics and started Planned Parenthood, then conversely people who now support Planned Parenthood must support eugenics. Obviously, that’s not the case. Today’s culture wars over abortion and public funding of Planned Parenthood are the subtexts of renewed interest in Margaret Sanger.

Capitalism & Christianity
Most historians understand Progressivism as society’s collective reaction to the dramatic changes of industrialization and urbanization. A related angle is to see it as the reconciliation of two American pillars: the moral impulse of Christianity and the ruthlessness of no-holds-barred industrial capitalism. No one definition fits perfectly, including this, since some Progressives weren’t Christians, capitalism wasn’t uniformly ruthless, and progressive issues transcended the economy. But the bottom-line amorality of free markets conflicted with the Social Gospel of helping others then prominent among both Protestants and Catholics, and Progressives helped reconcile capitalism with Christianity. The drawing below, appearing in the pro-labor magazine The Masses, draws on that tension between commoners and free markets, suggesting that modern capitalist societies would view Jesus as an outlaw. Less inflammatory, churches of the era provided charities and built hospitals and schools, furthering efforts they’d started centuries earlier.

Jesus on a “Wanted-Poster,” by Art Young, The Masses, 1917

Historians and textbook writers need a common theme to toss a bunch of topics in that don’t otherwise fit into more thematically unified chapters (like World War I), and the Progressive Era fits that everything-but-the-kitchen sink bill for the period between 1890-1920. A final way to understand the Progressive Era would be to look it up on Wikipedia and you should feel free, but not required, to consult that and other sources to augment my definitions. The late 19th and early 20th centuries obviously weren’t the first time in human history that conflicts over rules and laws occurred to anybody, but industrialization, urbanization, and population growth magnified those conflicts.

Jane Addams, Chicago Daily News, 1915

Tackling poverty and poor working conditions, for instance, was a primary agenda of some Progressive reformers. Chicagoan Jane Addams built Hull House to feed and educate poor children, arguing that the environment of poverty, not inherently or genetically bad character, triggered a cycle of social problems. Addams, in other words, was on the opposite end of the spectrum in the nature vs. nurture argument from eugenicists, on the side of nurture. Likewise, Dr. Alice Hamilton studied typhoid and the effects of factories on workers, arguing that working and living conditions impact one’s health. Working conditions were a good example of how different Progressives worked at cross-purposes. As we’ll see below, some focused on worker efficiency and speeding up assembly lines, while others focused on safety and ameliorating unhealthy or unsanitary conditions and chemical exposures that could cause long-term diseases or short-term conditions like phossy jaw, caused by overexposure to phosphorus.

The idea that your employer owes you a safe working environment, something most of us today take for granted as a reasonable expectation, was born in the Progressive Era. It’s safe to say the vast majority of today’s Libertarians probably wouldn’t be okay with being seriously injured at work because their employer was too cheap or lazy to take proper precautions. It’s a good illustration of how the regulatory impulse is much easier to oppose after one’s protected by regulations. A true bona fide Libertarian, on the other hand, doesn’t mind breathing smog, mercury-filled lakes and streams, getting fired just before his pension kicks in, being discriminated against because someone doesn’t like where his ancestors are from, and putting out his own house fire with a garden hose as his kid buys crack at the corner mart. Who amongst us fits that bill?

The Progressive Era was when many of these basic regulations were hammered out and people became more aware of the problems around them. Muckraking journalists, so named because they “raked up the muck,” drew the public’s attention to corporate malfeasance, as with Ida Tarbell’s investigation into Standard Oil Trust in McClure’s Magazine. Nellie Bly faked insanity to go undercover in a women’s asylum, reporting on the abusive staff there. Jacob Riis and Lewis Hine educated people about squalid living and working conditions through photography. Lincoln Steffens drew the public’s attention to the corruption of urban political machines in The Shame of the Cities (1904). McClure’s published Steffens and Tarbell’s investigations in serial form, spread out over successive issues. Later, we’ll discuss Upton Sinclair, the man President Teddy Roosevelt had in mind when he coined the term muckraker.

Suffragist Movement
Expanding democracy and agitating for social justice were part of the Progressive movement as well, though an obvious blind spot of most Progressives was race. Progressives, by and large, failed to reinforce the early Civil Rights movement. Other than a handful of forward thinkers like the co-founders of NAACP, white reformers of the era did less to fight discrimination than those of the mid-19th or mid-20th centuries. But the Suffragist (or Suffragette) movement that launched in the 1840s culminated at the end of the Progressive era with passage of the Nineteenth Amendment in 1920. By then, the Suffragists’ concern for voting merged with other feminist concerns about access to equal-paying jobs, marital and property laws, etc. Many people, including some women, felt that women didn’t belong in the public sphere and some even thought it lowered their prestige to enter into the corrupt world of business and politics. In 1905, former president Grover Cleveland (D) said, “Sensible and responsible women don’t want to vote.” Prior to the 19th Amendment, women could vote in some states but not others.

Suffragists excelled at organization and pageantry, dressing well and marching in parades. In a big 1913 parade through Washington, D.C., organizer Alice Paul symbolically put a woman on a white horse at the front of the march (full image). Paul, the daughter of Quaker parents, picked up where earlier 19th-century leaders like Elizabeth Cady Stanton (1815-1902) and Susan B. Anthony (1820-1906) left off and led the final, successful push for women’s suffrage. Some people assume that agitating requires wearing menacing masks, hating “the man” (or men, as it were, in this case), throwing bricks, or acting obnoxious, but that’s usually counter-productive. Suffragists protested with aplomb and a sense of flair. They didn’t hate men, they knew what they wanted, and they knew they were right.

Sheet Music For An Anti-Suffragette Song Arguing That Women Shouldn’t Be Worrying About Themselves While The Country Is At War, 1919, Library of Congress

As President Woodrow Wilson argued for U.S. involvement in World War I to promote democracy, Suffragists picketing in front of the White House pointed to the obvious hypocrisy of denying women the vote. Some onlookers didn’t approve and crowds pelted the women with tomatoes and eggs. Wilson had the women arrested for obstructing traffic, but when wardens force-fed them in prison to stop their hunger strikes, public sentiment swung in their favor. A similar thing happened in Britain. An English martyr for the cause named Emily Davison threw herself in front of King George V’s horse, fatally wounding herself, to rally supporters (optional video). British women over 21 of all economic classes gained the vote in 1928. World War I also caused more American women to work in industry to replace soldiers, further weakening the already weak argument that they shouldn’t vote because they weren’t active in the economy.

Congress and enough of the hold-out states capitulated and the Nineteenth Amendment became law in 1920, the largest single expansion of democracy in American history. While presidents don’t have a formal role in passing amendments, their support can make or break the process, as seen by Abraham Lincoln’s tireless campaigning on behalf of the Thirteenth abolishing slavery. Wilson came around to the Suffragists’ view and supported the Nineteenth. With over 10k women in the Navy and Marines and more working in factories, Wilson said, “We have made partners of women in this war. Shall we admit them only to a partnership of suffering and sacrifice and toil and not to a partnership of privilege and right?”

The Nineteenth Amendment, in theory, gave all American women the right to vote, which at the time realistically meant white women. Indeed, one unsavory aspect of the Suffragist movement was the alliance of some leaders with racists, who joined forces because adding women doubled the white vote and/or because women would help outlaw alcohol. Suffragist and temperance reformer Frances Willard (left), the daughter of abolitionists, said, “better whiskey and more of it is the rallying cry of the great, dark-faced mobs.” Temperance, women’s suffrage, and civil rights were a complicated trio of issues, leading to strange bedfellows and opponents.

John Trumbull, Declaration of Independence, 1817-19, U.S. Capital Rotunda

1911 Cartoon, Library of Congress

The Regulatory StateProgressivism also dealt with more mundane but practical issues. When New York City firemen were called to the Great Baltimore Fire of 1904, their hoses didn’t fit on Baltimore’s hydrants. That compelled the National Institute of Standards (then Bureau) to standardize hose couplings and galvanized their general push to standardize gauges, fasteners, prong plugs, window sizes, etc. Any sane person would agree that standardized fittings make life easier. Today we take it for granted (or at least cross our fingers) that the things we buy at stores will fit on/in our homes, engines, or gadgets. Commerce Secretary Herbert Hoover brought together hundreds of industries in the 1920s including aviation, automobiles, and electronics. They honed measurements and even came up with an agreed upon bread loaf size. We’ve all heard of horsepower and, if we take the time to think, are aware that it dates to an age when horses did much of our work. But who gets to decide what one unit of mechanical hp(I) actually is? James Watt had the original idea for hp units, but the ultimate arbiters are institutions like the standards bureau. Would you prefer to leave a subjective guesstimate up to each car salesman? Hoover exported a lot of these standards through trade agreements by the Bureau’s foreign division. This is one example of business and government working in tandem as standardization improved efficiency in accounting, shipping/distribution, and retail commerce.

Fireworks are a better example of Progressivism pushing into a marginal area that a reasonable libertarian might prefer the government stay out of. As more and more kids injured themselves on the Fourth of July, overwhelming emergency rooms, the government stepped in to regulate fireworks, outlawing the types that were blowing their hands off. By 1900, more kids were injured annually on July 4th than the total number of casualties in the Revolutionary War they were celebrating. It is a trivial but symbolic example of the general quandary posed by the Progressive spirit: should we take measures that make sense on a collective scale if it means compromising our individual freedoms? Should you have the right to fracture your skull wrecking a bicycle or fly through your car windshield, or does society have the right to force you to wear a helmet or seatbelt if that danger raises everyone’s insurance rates?

In a true laissez-faire system, meatpackers can kill you with spoiled meat and it’s your problem; the same goes with prescription medications. The free market will motivate your surviving relatives and friends to buy meat or pills elsewhere. In a regulated system, the producers and pharmacist are forced to sell you unspoiled meat and government-tested medication. Food and drug control were the first big intrusions of the federal government into the free market after railroad regulations. President Teddy Roosevelt supported reform, and when meatpackers resisted government inspections he threatened to release the results of an investigation that included graphic details. They backed down. Many large companies supported reform anyway as they needed to comply with European regulations to export, whereas smaller companies couldn’t afford to comply. Regulation came about partly because of the spoiled canned meat that killed soldiers in the Spanish-American War, partly because big packers supported regulations they knew their smaller competitors couldn’t keep up with, and partly because of a muckraking novel by Upton Sinclair entitled The Jungle (1906) revealed many of the industry’s graphic details that Roosevelt had threatened to release.

The author had worked undercover in a Chicago meatpacking plant. It wasn’t pretty. He described how they shoveled dead rats into sausage-grinding machines, how filth and guts were swept off the floor and packaged as “potted ham,” and how diseased cows were slaughtered for beef. Some workers were so frozen that when they rubbed their ears they broke off. Sinclair intended the book as a critique of capitalism itself, but readers were mainly just grossed out by the graphic (if somewhat fictionalized) depictions of the slaughtering houses. Sinclair wrote of his audience that he had “aimed for heads, and hit them in the stomach.” Teddy Roosevelt didn’t like the socialist polemic toward the end of the novel, but he sent a team to Chicago to investigate. They covered up their most graphic findings, but their report nonetheless helped spur change.

Thatsame year, 1906, the U.S. passed the Pure Food & Drug Act that regulates meat production and drug labeling and created the Food & Drug Administration (FDA). It wasn’t simply a case where consumers wanted the laws and producers didn’t. Producers that were careful about selling healthier goods, like H.J. Heinz of Pittsburgh, lobbied on the law’s behalf because they knew it favored clean businesses and/or larger businesses. Profit margins don’t shrink if you’re already sweeping rat droppings into the trash. Likewise, E.R. Squibb, founder of today’s pharmaceutical giant Bristol-Meyers Squibb, was influential in ensuring that medicine included standardized dosages and ingredients in its packaging.

We’re stuck in an ongoing regulatory balancing act that can’t please everyone. Today, the multi-billion dollar dietary supplement industry isn’t regulated by the FDA and most of its products are worthless or placebos, with some harmful. Over 75% don’t even contain the basic ingredients advertised, let alone provide evidence those ingredients work. Yet, consumers get frustrated with too much regulation. Many people today would like to cut back on food safety regulations. Part of the problem is that regulations accrete over time, each one well-intended but together comprising a growing binder that’s overwhelming to small businesses, especially. People can’t follow rules when the rulebook is over a thousand pages.

When these rules hit a tipping point, either in government or within large companies or institutions, it’s known as red tape or regulatory creep. Red tape drives people crazy because there are too many rules and regulations to keep up with. Bureaucratic bloat is another term that comes to mind, not so much for the growth of rules but for the endless expansion of departments within institutions. Of course, complaints about red tape provide an excellent cover for those that want to grow profits by retracting sensible regulations that really protect people. As these gray areas are negotiated and hammered out, regulators get familiar with the regulated. After the Deepwater Horizon oil spill, it came out that regulators of the former Minerals Management Service partied hard with oil company executives. Securities & Exchange Commission (SEC) corruption on Wall Street is notorious. The crudest form of such corruption is bribery, but more common yet is regulatory capture, when regulators start making concessions to the very people they’re policing because they start to identify and socialize with them. Regulators and regulatees merge as people switch careers back and forth between the revolving door of industry, lobbying and government.

After Enron, Tyco, and WorldCom plundered their employees and investors with “creative accounting” in the late 1990s, there was an understandable push for stricter regulations. But now when you pay tuition, you’re paying more so that your school can stay in compliance with Sarbanes-Oxley (2002, aka “Sarbox”), including risk-management and internal auditing. That, of course, requires more staff, as does compliance with human resource codes, financial aid requirements, accreditation, internal safety, treatment of Veterans, athletic eligibility, etc. Each thick rulebook has a reason because we all want accountability, but you can see how bureaucracy begins to “bloat.” We need more bureaucracy to watch over the ones watching over others because they too need to be accountable. Former President Ronald Reagan was right when he called bureaus the “nearest thing to eternal life we’ll ever see on this earth.” But when Reagan said that “government can’t solve the problem; government is the problem,” he was too easily overlooking the fact that crime wouldn’t disappear if we just got rid of the police. In other words, the ultimate blame doesn’t go to the government, but rather the corrupt accountants, deadbeat borrowers, racist HR departments, cheating athletics departments, shortcutting oil and coal companies, etc. who bequeathed to us layers of regulation. We wouldn’t need government to be the unpopular adult in the room if we didn’t have so many bratty kids among us.

A lot of red tape is at the local level, where there seems to be less anti-government push back. Tried building a house lately? Inspectors demand hundreds of highly detailed specifications, driving builders, homeowners, and contractors nuts. City laws overlap and contradict neighborhood covenants, leading to lawsuits, delays, and even bankruptcies. On the other hand, American homes don’t burn down and blow over as easily as those in most countries. Shouldn’t your neighbor have the right to throw rusty old refrigerators in his front ditch? It’s his property and, after all, this is the land of freedom. True, but if his junk is unsightly and driving down your real estate value, then… You can see the train of thought. Given the economic impact of a neighbor’s unsightly property, we’re willing to deny him the most basic freedoms through Homeowner’s Associations (HOA’s). A “man’s home is his castle” as far as protection, but you can’t paint your castle the wrong color, or plant a tree in the wrong place, or make any alterations whatsoever that aren’t in your neighbor’s favorite agreed-upon castle style. We love the regulations we think we hate so much that we even get together and make up extra ones with our neighbors when the government isn’t involved.

We’re nuts for nitpicky regulations in public, too. As you’re standing there celebrating freedom on the 4th of July, make sure to not stand in the wrong place for too long. We have laws against loitering. In fact, the U.S. leads the world in loitering regulations. Don’t blame the government; the politicians themselves wouldn’t mind revoking them. Why would they care? But who among us wants people we think look weird or don’t like to be able to just stand wherever they want breathing oxygen? Having a criminal gang loitering on the sidewalk or on a certain street corner could destroy almost any small business, scaring away customers.

Yet walking away from the spot you’re not supposed to stand in can also be problematic. A 2015 Department of Justice Investigation found the police in Ferguson, Missouri had been arresting Blacks for a crime they called “manner of roadside walking.” Laws against standing or walking are a convenient excuse to crack down on gangs, prostitutes, and bums when they’re not actually in the act of doing anything wrong or, in the Ferguson case, for straight racial profiling of innocent people to raise revenue through fines. Our real dream is our own freedom to do as we choose combined with the freedom from being around other people exercising freedoms we don’t like. No government on earth could provide what any one person sees as just the right mixture.

Drugs & AlcoholThe 1906 Pure Food & Drug Act law also forced pharmacies to label medications. All drugs, pharmaceutical or recreational, were legal in America as of the mid-19th century. Cocaine was used as a local anesthetic and Coca-Cola® included trace amounts of the cocaine precursor ecgonine. As we saw in the previous chapter, Bayer marketed heroin for children’s colds. But opium abuse reached problematic levels among the upper-middle classes in the late 19th century. The 1914 Harrison Act banned over-the-counter sales of narcotics, limiting their use to doctor-authorized prescriptions. This law included opiates and cocaine but excluded cannabis (marijuana), which had been on earlier failed measures (the Mann Bill and Foster Bill) and remained subject to state and municipal control until 1937. The Harrison Act was the first attempt to transfer responsibility to the national government, though many states restricted drugs and poisons in the late 19th century. In general, broadening our view to include state laws pushes back our timeframe for the Progressive Era. Like the Pure Food & Drug Act, the Harrison Act was arguably unconstitutional. Under the 10th Amendment, rights not enumerated (granted) to the national government in the Constitution’s text revert to state police authority. Still, the Supreme Court backed the Harrison Act in Webb v. U.S. (1919). The Commerce Clause is the constitutional toehold for such laws, giving the national government authority over commerce crossing interstate lines.

It was the same with railroad legislation in the 1880s and the Sherman Antitrust Act of 1890 though in each of those cases the products in question didn’t always cross state lines. Cultural factors also influenced narcotics regulation. For instance, anti-marijuana laws were used to deport Mexicans from the Southwest (added to the list in 1937, when jobs were scarce), and anti-cocaine propaganda warned of black musicians using the drug to seduce white women. However unhealthy or addictive these drugs were in their own right — and local marijuana laws weren’t limited to the Southwest — their legal status was often as enmeshed in politics as it was their chemical properties. Despite racial stereotypes promoted by Federal Bureau of Narcotics Commissioner Harry Anslinger in his infamous “reefer madness” campaign of the 1930s, many Mexicans feared that marijuana caused madness and violence and Mexico banned the drug two decades prior to the United States. In the U.S. today, marijuana is still classified as a Schedule 1 drug by the national government even as several states have legalized small amounts for recreational use (as was the case in the 1970s). There’s also a bipartisan trend toward legalizing medicinal marijuana.

“The Genii of Intolerance – A Dangerous Ally for the Cause of Women Suffrage,” by Oscar Edward Cesare, Puck Magazine, September 1915

Alcohol also wasn’t included in the Harrison Act. Like women’s voting, liquor laws varied from state-to-state and county-to-county (and still do), creating a patchwork of dry and wet laws. Open Option Laws from the 1850s allowed for dry sub-divisions within wet counties but not vice-versa. Over the course of the 19th century, the temperance movement took aim at a variety of social problems including poverty, laziness, and domestic abuse — the idea being that banning booze could eradicate all these problems in one fell swoop. The issue was tangled in the suffragist movement because drinkers feared that, if women won the right to vote, they’d push through prohibition. And, like that movement, it was connected to the Industrial Revolution. Alcohol didn’t mix well with machinery and lowered production, and industrialization contributed to the mass production and distribution of alcohol, lowering its price. Additionally, more Americans were driving cars and trucks by then, and people quickly discovered that drinking and driving didn’t mix. Then, when the anti-Catholic movement picked up among WASPs (white Anglo-Saxon Protestants), tee-totaling took a cultural turn. Finally, fighting World War I with heavy-drinking Germany pushed temperance over the top. You could now fight poverty, laziness, abuse, low productivity, drunk driving, Catholicism, and Kaiser Wilhelm II all at once simply by banning alcohol. Reformers viewed Prohibition as a panacea, or remedy for all ills, albeit a kinder and friendlier version than eugenics.

There were powerful business interests at work, too. Hollywood studios thought that people would be more likely to attend movies if drinking wasn’t an option, and Coca-Cola supported an alcohol ban for an obvious reason. Desperate brewers, meanwhile, tried to convince the government to only ban hard alcohol but, by World War I, it was too late and many of the brewers were German anyway (e.g. Miller, Pabst, Schlitz, Busch) at a time when the U.S. was fighting Germany. In an unusual cross-cultural alliance, German brewers even paid poll taxes for Hispanics and Blacks in Texas so that they could vote, banking that they’d support alcohol.

It wasn’t enough. The Volstead Act and 18th Amendment outlawed the production and sale of liquor, except for religious sacraments, home-brewing, and doctor’s prescriptions. Canada legalized liquor the very same week, recognizing an opportunity when they saw one. All the borders fought uphill battles trying to keep out bootleggers and many drinkers made their own bathtub gin, or “moonshine.” Alcohol’s black market drove crime rates sky high and corrupted police departments in the process. President Franklin Roosevelt revoked the Volstead Act in 1933; the 21st Amendment undid the 18th.

Certainly, Prohibition failed if its goal was to eliminate alcohol from society altogether, but that’s not a fair standard. It’s easy for us to forget how pervasive and damaging liquor was before Prohibition. Americans drank more heavily on average than today, and it really did worsen domestic abuse, poverty, and laziness. American men drank around 6x more annually before Prohibition than they do today. Alcohol consumption declined when Prohibition was first passed (up through 1922), but it’s difficult to distinguish between causation and association (see Rear Defogger #6) because consumption had already been declining since 1910, a decade before enforcement kicked in. It’s hard for historians to judge Prohibition’s impact on drinking because it overlaps with the advent of driving, movies, World War I, and a recession in 1921. Nonetheless, the mere fact alcohol abuse hasn’t returned to its pre-Prohibition rates calls into question the common interpretation that it failed utterly. It’s possible we drink less because we have more to distract us and need to drive more. Yet it’s also questionable whether we should gauge the usefulness of laws on whether they entirely eliminate a problem, a common thread of argument. We haven’t eliminated murder, but no one is suggesting we legalize it. Is it not the case that we’ve at least reduced homicides by outlawing them?

Another questionable interpretation is the idea that Prohibition’s failure proved it’s “impossible to legislate morality.” Obviously, hundreds of laws deal with morality rather than mere property rights, like murder and rape, for instance. Wasn’t the ban on slavery after 1865 an example of legislating morality? Be wary of drawing broad conclusions or principles from individual cases; ask yourself if the principle really applies to other cases. Even if we narrow the conversation to chemical substances, the statement is problematic. When drinkers argue that “drugs” are immoral, is that not an example of their morals being shaped by the law, or is that a cultural belief that predates modern legislation? Or, are there sound pharmaceutical reasons for legalizing alcohol and nicotine and outlawing other drugs?

Maybe a clearer lesson to draw from Prohibition is that any law, regardless of its moral status, is difficult to enforce and counter-productive if a critical mass of the population dislikes and/or defies it. During Prohibition, even some of the same Congressmen who passed the Volstead Act had a secret stash in the chambers of the House of Representatives. At some point, society has to weigh the downside of repealing the law versus the loss of life, effort, jail space, and cost put into outlawing it (tax expenditure and loss of potential tax revenue). Such logic compelled Washington and Colorado to legalize marijuana in 2012 and Oregon, Alaska, and Washington, D.C. in 2015. In Prohibition’s case, sympathetic juries often refused to convict bootleggers. Another lesson from Prohibition is that you can’t outlaw something unless taxpayers are willing to put the resources into enforcing it. In Prohibition’s case, neither the national government nor local or state agencies ever took charge of enforcement, each hoping to push costs off on the other. At one point, the entire state of New York had around 1500 people enforcing the alcohol ban. Most nights, there were city blocks in Manhattan with more people than that getting blottoed.

Mann ActThe government went after prostitution around the same time as drinking. Sometimes law enforcement refers to prostitution as vice (as in vice squad) but the term also has a broader meaning, referring to any immoral behavior. The federal Mann Act that outlawed prostitution, debauchery, and moving women across state lines for “immoral purposes” subsumed a patchwork of local laws. Legislators relying on Interstate Commerce stretched the definition of interstate during the Progressive Era and, in this case, the meaning of immorality. This so-called “white slavery law” was ostensibly aimed at prostitution, but its ambiguous language allowed authorities to prevent black men from traveling with white wives or girlfriends between states, or even in cars that could, potentially, travel between states given enough gas in their tanks. Originally, though, the white referred not to race but rather the victims’ innocence and purity. At its best, the Mann Act helped curb, and still helps curb, sex trafficking. At its most absurd, it was basically a law against black men being with white women, allowing police to break out the billy club for whatever encounters they deemed immoral. Several states had already outlawed miscegenation, including any inter-racial marriage. But the Mann Act was versatile and could be used by Feds to go after whoever they deemed unfit. In 1924, the Mann Act brought down Ku Klux Klan Imperial Wizard Edward Young Clarke.

What about real prostitution? The world’s oldest profession raises the same questions as other Progressive legislation in terms of whether it should be regulated to start with and, if so, whether it should be regulated at the state or national level (today, Nevada is the only state with legalized prostitution). One could argue that prostitution between consenting adults doesn’t harm anyone else and, therefore, isn’t the government’s business. That would meet the utilitarian test of moderate libertarianism insofar as the behavior in question arguably doesn’t harm others. On the other hand, prostitution commonly involves abuse, drug addiction, and the spread of communicable diseases, or STD’s, and can overlap with human trafficking (i.e. slavery). If you set legalities aside, the bottom line is that most Americans don’t really care that much about what consenting adults do behind closed doors, but neither do they want prostitutes in front of their businesses, homes, or schools. Having laws on the books allow police to look the other way in some contexts and enforce in others. That has utility but also opens up the possibility of double standards and profiling.

Jack Johnson with Second Wife, Lucille Cameron

The Mann Act’s racial overtones coincided with the rise of black heavyweight fighter Jack Johnson. Johnson wasn’t just pummeling white fighters; he drove convertibles down the road in a fur coat with white girlfriends and wives. He was what was known in the common parlance of the time as uppity, or proud. His behavior earned him the condemnation of conservative black civil rights leader Booker T. Washington and Whites. After he married a second white woman (the first committed suicide), two southern ministers suggested that he be lynched. The only explanation some Whites could fathom for their marriage was that he’d abducted her somehow or another, leading to the “white slavery” interpretations of the Mann Act. Around this time, boxing was banned from movie theaters and bouts were limited to 15 rounds (gloves were already widespread in the late 19th century). Progressive reforms impacted most forms of entertainment in one way or another.

Self-Regulation in Sports & MoviesBaseball, college football, and Hollywood reformed in the Progressive Era, but self-regulated before the government did it for them. Preemptive self-regulation is a wise move because it allows the industry in question to better control the terms. Early baseball was a raucous affair with more gambling, violence, and lewdness than would be tolerated today. Baseball reinvented itself as a wholesome, even pastoral, family-oriented game, downplaying its origins in the back-alleys of northeastern cities and re-branding “America’s favorite pastime” as having emerged from divine inspiration out of a cow pasture. Like the cleaning up of Las Vegas and Times Square in the late 20th century, baseball’s reform had the added benefit of increasing revenue. Indeed, in all three cases, that’s why it happened in the first place.

College football got a nudge from the government in the form of President Teddy Roosevelt, who held meetings with college administrators at the White House. TR loved the game but realized that it was causing too many deaths and severe injuries. In 1905 alone, 18 players died. Between 1890 and 1905, 300 players were killed playing college football. Some reformers suggested widening the field, but Harvard had just built a new stadium and didn’t want to rebuild it. TR lobbied instead for the forward pass to offset the rugby-like violence of the run game. They also banned “mass momentum” plays like the Flying Wedge whereby blockers moved in formation with their arms locked. Moreover, Roosevelt encouraged colleges to regulate themselves through the NCAA rather than forcing the government to intervene. The NCAA adopted standards for helmets and pads and tried to police the rampant cheating that’s continued to corrupt the sport’s amateur status. Later the organization expanded its role by organizing and hosting post-season tournaments. The NCAA’s only real power derives from the college presidents so, in theory, they could disband their own regulatory agency.

Motion Picture Production Code (Hays Code), ca. 1930s

Unlike radio, where the government controlled the airwaves by setting up and licensing multiple channels — an indirect result of the Titanic disaster — movies mostly escaped public regulation. They got pressure from society, though, especially the Catholic-led National Legion of Decency that saw Jewish producers as conspiring to undermine the country’s moral fabric (really, all producers were just conspiring to make money). Many Catholics had to sign pledges that they’d avoid films banned in their Motion Picture Herald. By 1934, Hollywood finally decided to get serious about the production codes they’d set up in the 1920s. With the revamped Production Code Administration (PCA), it applied its own rating system to movies — ranging from children’s fare to smut (e.g. G, PG-13, R, X, though the letters changed over time) — and censored sex, drugs, and abuse in its mainstream films in the early 1930s. They tried harder to have criminals and other degenerates pay for the crimes as plots resolved themselves toward the end of movies. Women could no longer cheat on their husbands without ruining their lives. In fantasy, if not always in real life, bad behavior had to have repercussions. Homosexuality was non-existent and, for years, heterosexual couples could only be on a bed or couch with one foot touching the floor. Alfred Hitchcock made a virtual art form out of squeezing the maximum amount of romance in line with code, most famously the kissing scenes between Cary Grant and Ingrid Bergman in Notorious, (1946).

While Hollywood’s ratings were self-imposed — acting on pressure from church and civic groups — it wasn’t immune to government attention. During the Cold War, Hollywood politics made their way to Washington during Congressional hearings on communist infiltration, as we’ll see later in Chapter 15. The FBI, led by its notorious and longtime director J. Edgar Hoover (who most biographers believe was confused about his own sexuality), maintained Obscene Files of photos and movie stills that it used to smear, among others, Leftists, Japanese (during WWII) and purveyors of “race music.”

Dunce Cap, ca. 1906, Library of Congress

EducationEducation and business also underwent revolutions grouped under the Progressive heading. Progressive education put a bigger emphasis on the process and practicality of constructive learning, rather than simple rote memorization. There was less emphasis in curriculums on esoteric subjects like Latin and more on industrial arts (“shop”) and home economics. State governments standardized grade levels so that teachers weren’t facing a single room full of kids ranging from six to sixteen. Kindergarten also became widespread. States bought textbooks for the students rather than have them bring whatever was lying around the house and even provided physical education (P.E.) to keep them in shape. Progressive educators didn’t punish students physically with spankings, or psychologically by forcing kids to sit facing the corner wearing dunce caps (though the child in the picture to the left seems to have adjusted). Behind their backs, though, educators wrote massive tomes about how stupid and out-of-shape American kids were, or had become, since presumably they’d been fitter and smarter in previous generations.

Most importantly, in terms of government’s role, school became required up through a certain age so that kids weren’t going directly into factories and mines as children. Since drinking and smoking were outlawed for youths around the same time, some historians have called the Progressive era the “invention of adolescence.” Society cordoned off a special, protected time of life for intellectual, physical, and emotional development — a time that should be spent in the classroom and in band, or on a safe football field, working one’s way through the minefields of puberty with the help of teachers, coaches, counselors, and parents rather than working in a steel mill for ten hours before hitting the bottle with your fellow 12-year olds and smoking a cigar. Farm kids still had to work, though, so schools instituted summer vacations to give them more time helping their parents.

BusinessIn business, Progressive (or scientific) management emphasized systematically studying the workplace to maximize efficiency. Managers used motion pictures, especially slow motion, to analyze spots on the assembly line, to better position the worker or equipment. Frederick Winslow Taylor, the pioneer of scientific management, influenced industrialists like Henry Ford who took the assembly line to extremes. Taylor felt that most workers were fundamentally lazy if you gave them the opportunity to be. Maybe that’s just human nature. He helped design workplaces to mitigate their laziness as much as possible, squeezing the most out of workers. In some ways, Taylor’s studies presaged the modern fields of ergonomics and industrial psychology, but the emphasis here was less on safety or worker’s attitudes than on maximizing the speed of production. Charlie Chaplin parodied “Taylorism” and ultra-efficient assembly lines in Modern Times (1936).

ConclusionThe Progressive Era kicked in as the American population grew and society got more complex. There were laws before that, of course, and the earlier 19th century laid Progressivism’s foundation with movements like abolition, temperance, prison reform, and the early Suffragist movement. However, industrialization thrust new problems onto society that sped up the growth of rules and regulations, just as it sped up growth and rates of production. Balancing freedom with order conflicts most of us and we blame our politicians for that internal conflict. They, in turn, compensate themselves for their trouble by taking donations from lobbyists who pay them to pad (mostly Democrats) or water down (mostly GOP) regulations. At campaign time, those doing the padding can point to numerous problems and injustices that need fixing and demand accountability. Those on the watering-down side of the equation ask if you like “big government” meddling in your business. In the next chapter, we’ll look at how these Progressive Era tensions played out in the economy.